Opinion
99-CV-1723
April 2, 2002
LUIS A. MURGAS, Petitioner pro se, Collins Correctional Facility, Collins, New York.
HON. JOSEPH A. PAVONE, GRANT C. JAQUITH, AUSA, United States Attorney for the Northern District of New York, Syracuse, New York, Attorney for Respondent.
MEMORANDUM DECISION AND ORDER
Petitioner moves pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct the sentence of imprisonment he received on May 20, 1998, in the United States District Court for the Northern District of New York. Petitioner had pleaded guilty to possession with intent to distribute and distribution of cocaine and crack cocain in violation of 21 U.S.C. § 841(a)(1). He sentenced to a period of 81 months imprisonment and five years of supervised release. Petitioner did not appeal his conviction.
Petitioner contends that he received ineffective assistance of counsel in violation of his constitutional rights under the Sixth Amendment in the following ways:
1) Counsel's misrepresentations regarding petitioner's possible deportation caused him to involuntarily enter his guilty plea,
2) Counsel failed to raise the Vienna Convention on Consular Relation ("VCCR") as a defense, and
3) Counsel failed to file a timely notice of appeal.
In the first claim at issue here, petitioner asserts that his guilty plea was involuntary because he made it in reliance on his attorney's false statement that because pleading guilty did not mean he had been convicted of an A-1 felony, he would be eligible for early release and deported to his native Panama in less than one year.
The statements made by petitioner at his guilty plea hearing are conclusive evidence of his guilt unless he can show a compelling reason why they should not be, such as ineffective assistance of counsel. United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992). "He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973).
Attorney effectiveness is a mixed question of law and fact. Under Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985), the test for determining attorney effectiveness in the context of a guilty plea is the two part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the Strickland, test, a petitioner must show: (1) that his counsel's challenged acts or omissions made counsel's overall performance fell "below an objective standard of reasonableness." 466 U.S. at 687-88, 104 S.Ct. at 104; and (2) "a reasonable probability but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial." Id., Hill, 474 U.S. at 59, 106 S.Ct. at 370. The second, or "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id. In Hill, the court found that the petitioner's allegations were insufficient to satisfy the second requirement because petitioner did not allege that, had counsel correctly informed him about his deportation eligibility, he would have pleaded not guilty and insisted on going to trial. Id. at 60, 106 S.Ct. at 2064. Petitioner does not allege in his petition that he would not have pleaded guilty if counsel had not made the alleged misrepresentations, however, since pro se petitions are subject to a more lenient standard of review than petitions drafted by attorneys, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 80 L.Ed.2d 652 (1972), the court will assume that petitioner has made such allegation.
Nonetheless, in United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954), the Second Circuit was unable to find a "manifest injustice"when the defendant was seriously misled by his counsel, a former Commissioner of the Immigration Service, who advised his client incorrectly about his deportation possibilities if he pleaded guilty. The Second Circuit held that the surprise that results from erroneous information received from the defendant's own attorney, without a clear showing of unprofessional conduct, is not enough to set aside a conviction. "Moreover, here the subject matter of the alleged surprise was not the severity of the sentence but a consequential consequence there, namely, deportability. . . . We think it plainly unsound to hold, as now in principle we are urged to hold, that such defendants are subjected to manifest injustice, if held to their plea, merely because they did not understand or foresee such collateral consequences. We find no case which even looks in that direction, and the absence of cases expressly rejecting such doctrine we attribute to the absence of a rule so palpably unsound." 212 F.2d at 921-922 (2d Cir. 1954). Other than merely asserting that a violation of his constitutional rights occurred, petitioner has not set forth facts with sufficient detail in his first claim to point the court to the real possibility of constitutional error. Oliver v. United States, 961 F.2d 1339, 1343 n. 5 (7th Cir. 1992). The first claim lacks merit and will be denied.
Petitioner postulates in his second claim that his counsel was constitutionally ineffective for not investigating his case thereby failing to advise him of his rights under Article 36 of the Vienna Convention on Consular Relation and by failing to use the Vienna Convention as a defense tool at the guilt or sentencing phase of his case.
Article 36 of the Vienna Convention provides in pertinent part:
[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consulate post of the sending State if, within its consular district, that a national of that State State is arrested. . . . The said authorities shall inform the person concerned without delay of his rights under this subparagraph. Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77.
Assuming that his attorney's failure to discover and inform petitioner constituted deficient performance under the first prong of Strickland, his claim is without merit because although he has alleged prejudice, the claims are vague and general and do not demonstrate prejudice. [I]neffective claims of deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Strickland, 466 U.S. at 693, 104 S.Ct. at 2052. The mere fact that his attorney failed to inform petitioner of the Vienna Convention does not imply that the outcome of his case was tainted. Petitioner does not explain how contacting the Panamanian consulate would have affected the result of his case, and the court does not believe that the failure to contact the consulate had an impact on the outcome. Petitioner's own attorney was "likely far better able to explain the United States legal system to him than any consular official would have been," Beard v. Greene, 523 U.S. 371, 377, 118 S. Ct. 1352, 140 L.Ed.2d 529 (1998), and petitioner offers no evidence that the [Panamanian] consulate could have offered any assistance that his attorney did not." Polanco v. United States of America, 2000 WL 1072303 *7 (August 3, 2000).
Petitioner's second claim also appears to charge that the federal government violated his constitutional rights when it did not advise the Panamanian consulate of his arrest. The consular notification-provision of the Vienna Convention and its related regulations do not create any "fundamental rights" for a foreign national. Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994) ("Although compliance with our treaty obligations is clearly required, we decline to equate [the consular notification] provision of the Vienna Convention with fundamental rights"). Even if the Vienna Convention could be said to create individual rights (as opposed to setting out the rights and obligations of the signatory nations), it certainly does not create constitutional rights. Although states may have an obligation under the Supremacy Clause to comply with the provisions of the Vienna Convention, the Supremacy clause does not convert violations of treaty provisions (regardless of whether those provisions can be said to create individual rights) into violations of constitutional rights. Murphy v. Virginia, 116 F.3d 97, 100 (4th Cir. 1997, cert. denied, 521 U.S. 1144, 118 S.Ct. 26, 138 L.Ed.2d 1050 (1997). Furthermore, "the Vienna Convention does not create a right for a detained foreign national to consult with the diplomatic representative of his nation. A contrary conclusion risks aggrandizing the power of the judiciary and interfering in the nation's foreign affairs, the conduct of which the Constitution reserves for the political branches." United States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001).
The charges contained in petitioner's second claim lack substance and will be denied.
In his third and final claim, petitioner asserts that his counsel was ineffective because he failed to file a timely notice of appeal. The court rejects this claim. Petitioner could not file an appeal by virtue of his plea agreement. This agreement barred any appeal by petitioner except the appealing of any sentence which did not accord with the stipulation set forth therein. It is "well settled that a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable." United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998). As long as a defendant has agreed to a sentence within a stipulated guideline range, and the defendant is sentenced within the range, the defendant has obtained the benefit of his bargain. "In no circumstances . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of the sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement useless." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993).
Notwithstanding his effort to couch this as an ineffective counsel claim, in reality the petitioner is merely challenging the correctness of his sentence under the Sentencing Guidelines. Djelvic, 161 F.3d at 107. To allow a petitioner to "unravel" a knowing and voluntary waiver by making general allegations of ineffective assistance of counsel (allegations that do do bear on the sufficiency of the waiver itself) would exalt form over substance." Pratt v. United States, 22 F. Supp.2d 868, 871 (C.D.Ill. 1998).
Counsel's failure to file a notice of appeal cannot be seen as objectively unreasonable in light of petitioner's express agreement to waive his right to appeal. McKenzie v. Strack, 1995 WL 314700 at *4 (S.D.N.Y. May 24, 1995). Petitioner's third claim is unpersuasive and will also be denied.
Accordingly, for the reasons stated above, petitioner's § 2255 motion to vacate, set aside or correct his sentence of imprisonment is DENIED,
IT IS SO ORDERED
Consular notification usually serves to ensure that a foreign national charged with violation of American law is visited by an official representative of his native country who can explain to him his rights as a criminal defendant in the United States, most notably his right to legal counsel and his right to remain silent. United States v. Tapia-Mendosa, 41 F. Supp.2d 1250, 1257 (D.Utah 1999). As soon as a defense counsel enters a notice of appearance, however, he assumes the entire responsibility for protecting these and all other legal rights of the defendant. During the time period in question, petitioner was represented by counsel, and whatever obligations the Vienna Convention places on federal officials concerning consular notification of a foreign national's arrest, a defense attorney cannot be labeled ineffective for failing to advise his client of the right to converse with a diplomatic official who could do no more to protect his rights than defense counsel himself. United States v. Arango, 1999 WL 1495422 (E.D.N.Y. Dec. 29, 1999).
A defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea.
The standards for presenting a claim of ineffective assistance of counsel were set out by the Supreme Court in First, the defendant must show that counsel's representation fell below the objective standard of reasonableness. Id. at 687-88. In order to meet this requirement, the defendant must overcome the strong presumption that counsel's conducr fell within "the wide range of professionally competent assistance." Id. at 689. Second, a defendant must showthat counsel's deficent performance prejudiced the defense. Id. 692. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. 692